Boston College will contest a new legal bid by British law enforcement to seize the entire trove of interviews from the university’s Belfast Project, university officials said Friday, joining a renewed battle over the controversial archive.

In a statement Thursday, the Police Service of Northern Ireland said it would seek to obtain the collection of interviews with former members of militia groups that clashed during the decades-long conflict known in Northern Ireland as the Troubles. But police did not specify a course of action or timetable.

“Detectives in Serious Crime Branch have initiated steps to obtain all the material from Boston College as part of the Belfast project,” the Police Service said. “This is in line with PSNI’s statutory duty to investigate fully all matters of serious crime, including murder.”

A spokesman for Boston College said Friday that the university had not received any information about the move to acquire the archives. But the spokesman said the blanket request for all materials, including interviews with more than a dozen members of a militia group loyal to Britain, seemed aimed at rebutting critics who have accused British authorities of using the archives for political purposes.

“The [Police Service of Northern Ireland] has been criticized for only pursuing the interviews of former IRA members,” said spokesman Jack Dunn. “This appears to be an attempt to deflect criticism that their actions were politically motivated.”

A spokesman for the Police Service declined to comment.

From 2001 to 2006, researchers interviewed former members of the Irish Republican Army, who sought a united Ireland, and former members of the Ulster Volunteer Force, a paramilitary group that wanted Northern Ireland to remain part of the United Kingdom.

Dunn said Boston College would fight to protect the interviews and hoped that US authorities would reject the legal request.

“Since the first subpoenas were issued in 2011, Boston College has pursued legal, political, and diplomatic efforts to oppose the effort of British law enforcement to obtain the interviews in an effort to protect the enterprise of oral history and the peace agreement in Northern Ireland,” Dunn said. “We will continue to do so and hope that the State Department and the Department of Justice will reject this latest request.”

A spokeswoman for the US attorney’s office in Massachusetts declined to comment.

Former militia members consented to interviews for the oral history project with the assurance that their statements would be kept confidential until their death. But Northern Ireland authorities, using a mutual legal assistance treaty with the United States, pursued the interviews as potential evidence of past crimes.

The treaty requires the nations to share information that could aid in criminal investigations.

After a lengthy court battle, Boston College was compelled to hand over 11 interviews with former members of the Irish Republican Army, leading to the recent arrest of Gerry Adams, the leader of Sinn Fein, in connection with the notorious 1972 killing of Jean McConville.

After being released without charges earlier this month, Adams said interviews from the oral history project formed the basis for his arrest. Adams has denied any involvement in the killing of McConville, a mother of 10 who the IRA believed was an informer.

McConville was abducted and secretly buried. Years later, the IRA admitted responsibility for her death.

Information from the interviews also led to the arrest of Ivor Bell, a former IRA member who was charged in the slaying of McConville.

The arrests have led to criticism that Northern Irish authorities are exploiting the archives to cause political damage to Adams and Sinn Fein, the former political arm of the Irish Republican Army. Adams has criticized researchers for focusing on former IRA members who became critics of Adams and the peace process.

After Adams’s arrest, Boston College said it would return interviews to any participants who requested them and would not keep copies. Several people had already made requests.

Ed Moloney, an Irish journalist who led the project, blasted the British authorities’ latest bid to obtain the archives.

“I call upon the US government to resist this fishing expedition by the PSNI and to remember that the major consequence of this bid to invade an American college’s private archive will be to undermine a peace deal that was in no small way the product of careful American diplomacy and peace building,” he wrote on his blog.

“I also call upon Boston College to vigorously resist this action and to rally the rest of American academe in the cause of research confidentiality,” he wrote.

NBC News has also requested that previously subpoenaed materials be unsealed, writing that “any case involving incidents of terrorism and criminality . . . is a matter of great public interest.”

Sarah Wunsch — staff attorney at the American Civil Liberties Union of Massachusetts, which backed two project researchers in their effort to protect the interviews — called on American authorities to reject the police request.

“I think it’s time for the US government to call a halt to this, which is not only damaging to oral history and academic freedom, but also immensely damaging to peace in Northern Ireland,” she said.

Three years after Boston College began a lengthy battle to retain control over an oral-history project on the Troubles in Northern Ireland, the college may find itself back in court again. The Police Services of Northern Ireland said on Thursday that they would seek the entire archive—all 46 interviews—in which former members of the Provisional Irish Republican Army and loyalist paramilitary groups talked about their activities during the decades-long civil conflict. Some of those conversations relate to crimes they and others may have committed.

“Detectives in Serious Crime Branch have initiated steps to obtain all the material from Boston College as part of the Belfast Project,” according to a statement provided to the BBC by the police. “This is in line with the PSNI’s statutory duty to investigate fully all matters of serious crime, including murder.”

In 2011 the police sought, and later received, interviews that discussed one of the most notorious murders in Northern Ireland, the killing of Jean McConville, a widow and mother of 10 whom the IRA believed to be an informer for the British. Boston College relinquished the complete interviews of two former IRA members along with portions of interviews of a number of other participants.

The police in Belfast subsequently brought in several people for questioning, most notably Gerry Adams, leader of Sinn Fein, the IRA’s political counterpart, and a major figure in Northern Ireland. They have so far charged only one person, Ivor Bell, with aiding and abetting Ms. McConville’s murder.

The investigation has caused turmoil in Northern Ireland, with Mr. Adams’s supporters arguing that his interrogation had been politically motivated by opponents out to embarrass him and to dismantle the fragile power-sharing arrangement between republicans and loyalists. The Good Friday Agreement, which took effect in 1998, was the result of negotiations led by a U.S. envoy, George J. Mitchell.

Boston College’s spokesman, Jack Dunn, said by email on Thursday that the college had not been contacted by the U.S. Department of Justice about the latest police effort, and thus it would be “inappropriate to comment on speculation within Northern Ireland.” The Justice Department began a court case against the college in 2011 on behalf of British authorities through a treaty pledging mutual legal assistance. Christina Sterling, a spokeswoman for the U.S. attorney’s office in Massachusetts, which handled that case, declined to comment.

‘Resist This Raid’

Ed Moloney, who directed the project for Boston College, called on the U.S. government “to resist this raid on an American college’s archive and to remember that the ultimate victim, if this succeeds, will be a peace process that was the product of American diplomacy and peace building.”

Mr. Moloney, an Irish journalist, and Anthony McIntyre, an Irish researcher and writer who conducted the interviews with former IRA members, ultimately fell out with Boston College over the handling of the court case. The two men argued that the college should have refused to turn over any materials. In an email Mr. Moloney said that Boston College should “resist to the utmost this attempt to raid its private archives.”

Mr. McIntyre said he was not surprised by the latest move by the police. When Boston College publicly announced that it would return interview materials to participants upon request once the court case was over, he argued, the college created a window of opportunity for the police to go after the remainder of the archive. Mr. Dunn declined to say whether the college had yet returned any materials to people who had requested the return of their interviews.

Mr. McIntyre called the latest effort by the police “politically driven in that they probably want further grounds to re-arrest Adams.”

Sarah Wunsch, a staff lawyer with the American Civil Liberties Union of Massachusetts, which filed a friend-of-the-court brief on behalf of Mr. Moloney and Mr. McIntyre in 2012, called the latest police pursuit “very dangerous.”

“It raises very important issues for the secretary of state [John F. Kerry] and the attorney general [Eric H. Holder], possibly putting in jeopardy the peace process,” she said, noting that when he was a U.S. senator, Mr. Kerry argued that the United States should ask the British authorities to withdraw their request for the tapes for that very reason.

The project has continued to generate fallout in recent weeks. One participant, Richard O’Rawe, a former IRA member, said he planned to sue Boston College for failing to make him aware of the legal risks and subsequently endangering his life. Graffiti has popped up around Belfast deriding “Boston College touts,” as informers are called. And this week it was revealed that NBC News had petitioned the U.S. district court in Boston for full access to the archives.

The AP and Fox News controversies are not isolated First Amendment incidents for President Obama’s Department of Justice (DOJ).

There is an ongoing legal case that raises the same protection-of-sources-issues that have been debated in the media firestorm surrounding the DOJ’s pursuit of AP and Fox News sources.

The DOJ a couple of years ago subpoenaed interviews obtained by researchers hired by Boston College as part of its “Belfast Project.”
The Belfast Project was designed to conduct and archive oral interviews with people who were directly affected by “The Troubles,” a time period that spans from the late 1960s though the late 1990s in which violent conflict erupted between British-controlled Northern Ireland and the Republic of Ireland.

Those interviewed by Boston College-hired researchers Ed Moloney and Anthony McIntyre were promised that their remarks would not be released to the public until the interviewees had died, for fear that they would face prosecution charges. Moloney is an award-winning Irish journalist.

Senate Foreign Relations Committee Chairman Robert Menendez (D-N.J.) has said that releasing the interviews “could have the effect of re-opening fresh wounds…”

This position, however, did not sit well with some North Irish families that had relatives who were either kidnapped or killed. One well-known case is that of Helen McKendry, whose mother, Jean McConville, was kidnapped and murdered by members of the Provisional Irish Republican Army (IRA) in 1972.

The British government asked the United States for assistance with this matter under the Mutual Legal Assistance Treaty (MLAT), which allows for cooperation between two or more foreign governments during criminal investigations that have transnational implications. The Obama administration agreed, sparking outcry from First Amendment advocates.

Amid the recent AP and Fox News controversies, Obama administration officials have defended their handling of protecting national-security-secrets while also stressing their strong commitment to the First Amendment. But critics of the administration say the Boston College case undercuts those claims.

Sean Hughes, a spokesman for the Ancient Order of Hibernians in America, an Irish Catholic men’s organization, said, “If DOJ is for the press and the First Amendment then why did they let the Boston College subpoena go through for two journalists doing research on the ‘Troubles?'”

The first set of subpoenas were issued for interviews conducted with Dolours Price and Brendan Hughes. Price was an accomplice in McConville’s kidnapping and murder while Hughes was a former Officer Commanding of the IRA’s Belfast Brigade. Hughes was already dead at the time the subpoena was issued, but Price was still alive. Boston College officials did not want to initially turn over her interviews to the Police Services of Northern Ireland at Britain’s request.

Instead, the interviews were given to U.S. District Judge William G. Young with the intent that they would be reviewed and that the judge would eventually quash the subpoena. Young, however, declared that the British were right in requesting the documents. This left Moloney and McIntyre to challenge the subpoena as individuals in front of the First Circuit Court of Appeals. The First Circuit, as well as the Supreme Court after that, denied Moloney and McIntyre’s challenge to the subpoena.

A second set of subpoenas was issued by Young for additional interviews relating to McConville’s death, for which Boston College did decide to issue a challenge. On Friday, the First Circuit released its final decision in which 11 out of 85 interviews must be turned over.

In April, Boston College Press Secretary Jack Dunn said, “We chose not to appeal the district court’s ruling on the first subpoena involving Delours Price’s interview because we felt there was no grounds for appeal. Our focus remains on our appeal of [Judge William Young’s] ruling regarding the second set of subpoenas, which remains before the First Circuit Court of Appeals.”

Even though it has not received as much media attention as the DOJ controversy involving the wiretapping of journalists from the AP as well as the labeling of Fox News Chief Washington Correspondent James Rosen by Attorney General Eric Holder as a “co-conspirator,” the Boston College case has still hit a nerve with First Amendment advocates.

Harvey Silverglate, a criminal defense and civil liberties litigator who has written extensively on the Boston College case, says that potential fines could have been one factor in the university’s decision to not initially challenge the subpoena. “In theory, a judge can bankrupt the richest newspaper or broadcasting company in the country,” notes Silverglate. “The nature of civil contempt is that it can impose unlimited escalating fines.”

Holder has said recently that he never actually intended to prosecute Rosen, though he had to knowingly sign off on labeling him as a co-conspirator in order to obtain those conversations.

Peter Carr, a DOJ spokesman, defended the department’s handling of the Boston College case: “The United States has been complying with our treaty obligations to assist this criminal investigation.”

Judge Juan Torruella, with the First Circuit Court of Appeals, stated in the court’s decision that “the fact that disclosure of the materials sought by a subpoena in criminal proceedings would result in the breaking of a promise of confidentiality by reporters (or researchers) is not by itself a legally cognizable First Amendment or common law injury.”

Although it’s not certain Boston College would have been fined for refusing the British government’s request, it would be of little surprise if officials did not want to take the risk. “You can’t put a newspaper in jail,” says Silverglate. “But you can bankrupt it.”

While the attorney general may know what course of action he will take once he signs off on a warrant, those being wiretapped or labeled as co-conspirators will surely not. Silverglate blames Holder.

“Someone should explain to the attorney general that the press plays a role in national security; they can find things out that the government doesn’t always know about and have in the past voluntarily postponed certain publications,” argues Silverglate.

Others, however, don’t blame Holder entirely.

Jonathan M. Albano, a partner at Bingham McCutchen LLP and a co-counsel for Moloney and McIntyre, thinks that the majority of the blame should lie at the feet of Congress and the courts. “This is the responsibility of the courts and Congress and they contributed to this problem,” says Albano. “For Congress to say that it’s shocked by these subpoenas is the height of hypocrisy.”

Moloney and McIntyre released a statement in reaction to Friday’s First Circuit’s decision. While they were pleased with the reduction in documents that needed to be handed over, they nonetheless gave a stinging critique of the Obama administration.

“And in the context of the Obama White House’s current intolerable assault on journalistic and media rights in the United States, the cooperation of the U.S. Justice Department in this disgraceful exercise deserved more condemnation and opposition from American academe than it ever got,” said Moloney and McIntyre. “Indeed the silence from that quarter during the last two years was almost deafening.”

Battle Over Northern Ireland Archive
From the Bureau for International Reporting: 14 years after peace came to Northern Ireland, a legal battle is erupting over the release of confidential interviews with former combatants of the Troubles. The US Department of Justice has subpoenaed several recordings being held at Boston College, on behalf of British law enforcement that is investigating a 40 year old murder. On Sept 7, The US First Circuit Court of Appeals will hear oral arguments in this fascinating case that raises competing interests of US First Amendment law, peace and security in a still-fragile Northern Ireland, and potential justice for a horrible crime.

Boston College, the Belfast Project and the Academy of Betrayal: Protection of Academic Freedom Until It Becomes Inconvenient
Harvey A. Silverglate and Daniel SchwartzHuffington Post
03/23/2012

The “Ivory Tower” has come to represent, to many, the aloofness that has increasingly infected the academy. But, properly understood, the metaphor suggests a fortification, a protection that allows one ensconced within it to follow his intellect and conscience rather than the temptations of popular and governmental approval, not to mention the ever-present corruptions dangled by lucre. But over the course of the last year, Boston College has shown immense institutional cowardice and abrogated its responsibility as a protector of academic freedom. The highly regarded Jesuit liberal arts college has been so betrayed by its administration, and in turn has so betrayed its most fundamental mission, that it has been left to the ACLU of Massachusetts to step-up in a battle for which those cowering behind the ivy walls have all but thrown in the towel before ever truly engaging in the fight.

The remarkable imbroglio began when, in May of 2011, the United States Department of Justice subpoenaed a number of academic documents solemnly entrusted to BC’s possession, protection and care. The American governmental demand for the production of the documents arose out of a Northern Irish criminal investigation; rather than fight the subpoenas tooth and nail, as was its clear moral and academic obligation, Boston College’s haphazard and half-hearted defense of the fundamental importance of academic freedom has embarrassed the institution, threatens to harm academics everywhere and, not so incidentally, endangers the lives of people brave enough to reveal, for posterity, important historical truths.

In 2001, two scholars, former IRA member Anthony McIntyre and journalist Ed Moloney, founded “The Belfast Project”, a groundbreaking oral history undertaking centered at Boston College and meant to chronicle “The Troubles” in Northern Ireland, a decades-long bloody struggle which defined generations of Northern Irish and English alike. By 2001 the fighting had slowed considerably, and in July of 2005 the Irish Republican Army council announced that it would no longer pursue violence but rather would seek to achieve its goals through political processes. Sensing the changing times, Moloney and McIntyre created a ground-level chronicle of the decades-long struggle, and sought frank and truthful testimonies from all parties involved–without judgment, and without fear of repercussions. In order to solicit truthful narratives, Moloney and McIntyre–with the express backing of Boston College–promised their interview subjects that the testimonies they gave would be confidential until death.

But a Police Service of Northern Ireland (PSNI) investigation would put that confidentiality to the acid test. In a case that has been dulychronicledin the press here and abroad, a woman named Dolours Price–a Belfast project interviewee and former IRA member–was reported by an Irish newspaper to have admitted involvement in the still-unsolved murder of Jean McConville, a Belfast mother of ten apparently slain as a suspected informant in 1972. (McConville’s remains were finally discovered in 2003.) British authorities–in conjunction with the PSNI investigation–have requested that the United States Department of Justice subpoena Dolours Price’s “Belfast Project” recordings and interview materials. The United States has a “Mutual Legal Assistance Treaty (MLAT)” with Britain, and so the DOJ complied; subpoenas were issued, and Boston College initially sought to “quash” them, seemingly taking the stance that the dictates of academic freedom, protected by the First Amendment to the Constitution, trump the needs of a forty year old police investigation in another country. The case ended up in a Federal District Court in Massachusetts before Judge William Young. Tellingly, Judge Young started off on the wrong foot when he denied the scholars, McIntyre and Moloney, an official role as “intervenors” in the litigation because, in the judge’s either naïve or cynical view, “Boston College adequately represents any potential interests claimed by the Intervenors.” Given Boston College’s weak defense of the scholars’ and its own academic freedom, that determination would become laughable.

The central question before the court turned out to be whether the guarantee of confidentiality provided by the academicians to the interviewees was due any legal protection. News reporters have some limited degree of privilege when it comes to their guarantees of confidentiality extended to putatively confidential sources, lest there be a “chilling effect” on the vital work that reporters do. This partial privilege has come to exist despite Branzburg v Hayes, the landmark 1972 Supreme Court case that seemed to reject any “reporter’s privilege” lodged within the First Amendment. But some sort of reporter’s privilege did survive, because the most significant opinion to emerge from that case was not Justice ByronWhite’s majority opinion, but rather Justice Lewis Powell’s very short concurrence, in which he “emphasize[s] what seems…to be the limited nature of the Court’s holding” and assures that there be a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” That balancing test, mandated by the justice who cast the crucial fifth vote, has led lower court judges and even prosecutors to act with some admirable restraint before forcing reporters to betray sources where prosecutors might not need the information or might have other sources from which to draw the information they need.

This seemingly thin reed to which newspapers and news reporters have clung for four decades now has enabled considerable resistance by those subpoenaed as well as a surprisingly sympathetic response by many courts. As Judge Young himself would state in his eventual decision, there are three thresholds which traditionally need to be met in order to compel a reporter to give up confidential information: The information sought needs to be demonstrably relevant to the investigation; the materials cannot be “readily available from a less sensitive source;” and the inquiry has to be “non-frivolous.” Clearly the Northern Irish murder investigation represented a “non-frivolous” inquiry, even if it might have been undertaken for purely political or other mischievous reasons; but surely the other two planks were places and principles where Boston College could have been expected to stand and fight.

However, BC instead demonstrated little interest in, and inadequate institutional courage to undertake, a full-throated defense of an “academician’s privilege.” As Judge Young would report in his eventual decision, “in its first motion to quash, Boston College proposed an in camera inspection of the Dolours Price interviews.” In other words, Boston College’s very first action in response to the subpoena for privileged academic material was not to fight tooth and nail, but rather to turn the documents over to the Court and allow the judge to scrutinize them. The thinking often goes that if a judge analyzes the information in secret (“in camera” means “in a chamber,” as in the Judge’s private chambers), he can balance the interests of the investigation on the one hand, and the interests of preventing a “chilling effect” on the other. Judge Young granted Boston College’s request, and so Boston College turned over the Dolours Price tapes to the Court for a determination of their relevance. In one of the great ironies of the case, the government actually argued against this disclosure of the tapes or transcripts to the court, stating that on jurisdictional grounds the court did not have the right to undertake such a review.

But the surrender of the transcripts to the judge so early in the litigation had a profound influence on the ultimate outcome of the case in the lower court. By turning over the tapes right away, Boston College deprived itself of the option of engaging in a celebrated Catholic tradition that extends as far back as Thomas More: civil disobedience to unjust secular authority that seeks to infringe on age-old privileges of civil and religious society. Following a negative ruling, Boston College could have refused to turn over the tapes, arguing that despite what the government may say, academic privilege matters and must be given hearty protection as a matter not only of law, but of conscience. No Boston College administrator showed even an ounce of the bravery of newsmen and women who have marched into prison rather than give up their confidential sources. Reporters have endured prison sentences not merely to protect their sources and their own work, but to ensure the vitality of their profession; the academicians and clerics (BC has, after all, both secular and religious obligations) had the opportunity to do the same, and they ran from it.

Nor did Boston College utilize all of the robust institutional resources at its disposal in the fight. BC has, after all, a top-notch law school where reside any number of constitutional law professors who would surely have been interested in working on such a consequential constitutional case, not to mention hundreds of law students who would have loved the opportunity to dive into a high-profile and very consequential defense of the First Amendment protection of academic freedom. There is no indication that Boston College’s administration approached its trustees in order to garner further support, or made some other gesture to send a message to both the Department of Justice and Judge Young that it was hunkering down for a pitched battle to defend principles vital to the church, to the academy, and more broadly to civil society. (The institution’s lack of full-bore investment in the case seemed all-the-more surreal when part of the case was argued on Boston College’s campus , in conjunction with an earlier agreement by Judge Young to bring actual cases to law school campuses).

It was little surprise, perhaps, that on December 16th, 2011, Judge Young ruled against Boston College, and ordered the school to turn over the Dolours Price tapes to the government , for transmission to the Brits and then to Northern Ireland. Furthermore, he required that BC hand over to the court additional interview materials related to the McConville murder for in camera review so the court might “enter such further orders as justice may require.” As we have argued elsewhere when discussing this case, Judge Young’s decision was demonstrably flawed; it paid lip service to the existence of an academic’s privilege somewhat akin to that of a reporter, but then slipped too quickly, and without significant evidence, to the facile conclusion that the transcripts were essential to the investigation and contained information that could not be gleaned elsewhere. Young did not describe what investigative efforts had been undertaken by the Police Service of Northern Ireland; nor did he show that other resources for finding the privileged information had been exhausted. Rather, he concentrated the majority of his decision on the importance of the Mutual Legal Assistance Treaty with Great Britain, and tersely dispatched with the question of academic freedom in a few short pages. One had the distinct feeling that the judge was prepared to pay lip service to the existence and importance of an academic’s privilege, but that he knew from the start where he wanted the materials to go in the end.

Boston College did not immediately appeal the decision; rather, it was left to McIntyre and Moloney, to whom Judge Young had earlier denied entry into the litigation, to themselves appeal the ruling. The scholars indeed appealed and sought a stay of Judge Young’s turnover order – on the ground that the disclosure of the Dolours Price interviews could place them – the interviewers – in actual physical danger. Should the interviews get out, McIntyre and Moloney fear they will be viewed as collaborators, and the sentence for collaboration has often been death. The Court of Appeals, demonstrating the non-frivolous, indeed profound, nature of McIntrye’s and Moloney’s objections to what Judge Young did, stayed the turnover order and will take up the matter in April. One has to assume considerable chagrin on BC’s part, since it had earlier announced that it would not appeal Young’s initial turnover order “because the court both accepted Boston College’s argument that government subpoenas for confidential academic materials requires heightened scrutiny, and agreed to review the materials in camera.”

Adding insult to injury, on January 20th Judge Young demanded that, should Moloney and McIntyre fail in their appeal, Boston College must immediately turn over, additionally, the materials from seven more interviewees. Judge Young’s haste demonstrated that he was inclined to run roughshod over BC and the scholars, giving them little time to catch their breath. The scholars proved more fleet-footed than BC; indeed, it took Boston College a full month to decide to appeal Judge Young’s second ruling; they have not appealed, and reportedly do not intend to appeal, Judge Young’s first ruling regarding the Dolours Price interviews. Indeed, Boston College has indicated that the decision to turn over Dolours Price’s interviews to the Department of Justice–at the request of the British and in conjunction with a forty-year old unsolved murder in Northern Ireland and with no indication in the decision that there was absolutely no other way to get at the information in her interviews–is perfectly fine with them. Indeed, as researcher-intervenor Ed Moloney put it on a website dedicated to the case, Boston College’s appeal of the release of the seven additional interviews, evading the main event, is nothing more than a “sham fight at Scarva .”

But while Boston College may have abrogated its duty to protect academic freedom, the two intrepid researchers, and, as of February 27th, the ACLU of Massachusetts, have stepped into the fight. The ACLUM filed a powerfully-argued friend-of-the-court brief that makes the points BC should have made. [Full disclosure: Author Silverglate sits on the Legal Committee of the ACLU of Massachusetts and cast a vote in favor of ACLUM’s filing its brief in the Boston College case.] The scholars are also seeking other, more political avenues of redress: they have secured the support of Massachusetts Senator John Kerry, who in a public letter addressed to Secretary of State Hillary Clinton, urges Secretary Clinton to “work with the British authorities to reconsider the path they have chosen and revoke their request” for the transcripts.

But despite the intervention of the senior senator from Massachusetts, Moloney and McIntyre face an uphill battle. The already difficult task of overruling a lower court decision was compounded by Boston College’s lack of any demonstrable reluctance (and spine) to turn the transcripts over to the authorities. Moreover, as the scholars were initially denied (by Judge Young) the right evento defend in court their pledges of confidentiality, the first hurdle will be for the Court of Appeals to grant them the “standing” to litigate against the Department of Justice in this matter. The second hurdle, of course, will be their ability to win the privilege argument on its merits once they’ve earned the right to make it.

But the ACLUM is a formidable ally, and their friend-of-the-court brief makes a number of striking but perfectly logical and obvious points. One particularly powerful argument is that to turn over the documents to the British government without a clearer indication that doing so was a last resort would represent a disturbing indication “that the Constitution surrenders US citizens to foreign powers with fewer safeguards than are afforded to citizens subpoenaed by domestic law enforcement agencies.” In other words, they argue, Northern Ireland may not guarantee certain protections of speech, but the United States does, and US citizens should continue to retain those protections even when the infringer is a foreign power acting through the instrumentality of the U.S. Department of Justice via a treaty.

While it is heartening that the ACLUM has seen fit to enter the litigation, the sad truth is that were Boston College more principled, the help might not have been necessary. There are a number of possible theories as to why BC has abdicated such a fundamental responsibility so logically reposed in the academy. Maybe the principles of academic freedom were not deemed worth the cost of a real legal battle. Or perhaps BC feared that a protracted legal battle would endanger its federal dollars, funds which BC President William P Leahy declares in his book, Adapting to America, have been essential to “accommodate[ing] postwar demand for education.” But no matter the reason, members of the BC community should be concerned about what the administrators of their institution have done, or failed to do.

Harvey Silverglate is a Cambridge, MA, civil liberties and criminal defense attorney and Chairman and co-founder of the Foundation for Individual Rights in Education (FIRE). He is the co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999). He sits on the Legal Committee of the ACLU of Massachusetts and cast a vote in favor of ACLUM’s filing its brief in the Boston College case. Daniel R Schwartz is a FIRE Program Associate and a Brandeis University doctoral candidate focusing on Russian History who will be attending law school in the fall. Follow Harvey Silverglate on twitter @3Felonies, and Daniel @DanielRSchwartz

BOSTON — The American Civil Liberties Union of Massachusetts has submitted a friend of the court brief in support of two Boston College researchers who are challenging a court order that the college turn over confidential material obtained as part of the researchers’ work for BC’s Belfast Project oral history of the “Troubles” in Northern Ireland in the 1960s through 1990s. The British government is demanding the documents through the offices of the US government. The two researchers, Anthony McIntyre and Ed Moloney, have asked the US Court of Appeals for the First Circuit to block the release. Their appeal will be heard in Boston on April 4.

The US District Court refused to permit the two researchers to join the case, saying that BC officials would adequately defend their rights. The college subsequently failed to appeal the initial ruling ordering disclosure, although it recently filed a notice of a partial appeal involving another subpoena for records that the US District Court also ordered to be handed over to the government.

At issue is whether researchers have a right to defend in court pledges of confidentiality made to their sources on matters of legitimate public concern, particularly where, as here, the safety of the researchers and those they interviewed is at risk from such disclosure.

“It is essential that those who assume confidentiality obligations in exchange for obtaining information have the right to oppose attempts by public or private parties to compel disclosure,” said ACLU of Massachusetts cooperating attorney Jonathan Albano, deputy managing partner for the Boston office of Bingham McCutchen LLP. “Prohibiting academic researchers from defending their pledges of confidentiality–even when their own personal safety is at risk–would be an alarming and unprecedented infringement on First Amendment interests.”

On December 27, 2011, US District Court Judge William G. Young ordered Boston College to turn over all the interviews requested by the British government in the first subpoena relating to interviews with Dolours Price. This and an earlier order denying Moloney and McIntyre the right to intervene are the subject of the appeal and the ACLU of Massachusetts friend of the court brief. The Court of Appeals granted a stay of the lower court’s order.

A related issue raised in the ACLU brief is whether the Mutual Legal Assistance Treaty between the US and the United Kingdom should be allowed to authorize a foreign power, armed with an unreviewable stamp of approval from the Executive Branch, to compel a US citizen to produce confidential information for prosecutions abroad.

“It is alarming that the trial court opinion suggests that the Constitution surrenders US citizens to foreign powers with fewer safeguards than are afforded to citizens subpoenaed by domestic law enforcement agencies,” said Carol Rose, executive director of the ACLU of Massachusetts. “If the government has its way, it would straightjacket judicial review of investigations and prosecutions by any foreign country party to this treaty, including Russia and China.”

The brief also takes issue with the government’s argument that the personal safety of the researchers is their own fault, since they publicized the issuance of the subpoenas.

“This is reminiscent of an argument that might have been made by Joseph K.’s accusers in Kafka’s The Trial,” states the ACLU brief. “A witness’s decision to fight the government’s behind-closed-doors decisions affecting the witness’s welfare is not grounds, in this country at least, to impeach the witness’s motives for applying to the court for relief.”

“If this ruling stands, it will have a chilling effect on academic research for years to come,” said Rose.

In addition to Albano, attorneys in the case are Robert McDonell, also of Bingham McCutchen, Peter Krupp of Lurie & Krupp, LLP, and ACLU of Massachusetts staff attorney Sarah Wunsch.

Court ruling could “have a chilling effect on academic research for years to come”
ACLUm Online Coordinator Danielle RiendeauACLUm
Wed, 02/29/2012

Picture this: you are a survivor of the strife that scarred Northern Ireland from the ’60s well into the ’90s. You agree to give interviews–extensive oral histories, really–to academics “across the pond” here in Boston, under assurances of confidentiality.

Imagine that you are one of the researchers conducting the project, and promising your subjects confidentiality in exchange for their participation. The interviews cover secretive, nasty stuff–grisly details about civil war and violence, for which there could still be retaliation–and it’s absolutely necessary to protect your sources in order to get good, substantive information.

Now imagine that the institution under whose auspices this project was conducted is ordered to turn over confidential information from and about the subjects. Not good.

This is the crux of the latest case we are involved in, wherein Boston College has been ordered by the US government to hand over material collected by researchers Anthony McIntyre and Ed Moloney for an oral history they conducted called the Belfast Project, which involved interviews with people personally engaged in violent conflict.

Disclosing the source materials could have disastrous results for the individuals involved, not to mention the principles of free speech and academic freedom. If we make it harder to conduct research like this by making sources afraid to talk, it’s a loss to history and people’s ability to understand what happened. The memories of those involved will not be preserved and will simply disappear when they die.

We’ve just filed a “friend of the court” brief supporting the rights of these two researchers to keep the information they collected confidential. You can read all of the details here.

Our executive director, Carol Rose, said it best when she said the following this morning: “If this ruling stands, it will have a chilling effect on academic research for years to come.”

Failings in the police investigation of the murder of Jean McConville prompted the efforts currently under way in the US courts to obtain tapes of interviews with former paramilitaries.
The suggestion is made in a submission this week by the American Civil Liberties Union to the Massachusetts District Court hearing an appeal against a ruling that some of the tapes, currently held by Boston College, should be handed over to the British authorities.

The Massachusetts affiliate of the civil liberties union (ACLUM) also alleges that part of the motivation for the action has been to discredit the Sinn Fein leader, Gerry Adams.

It is believed that the tapes contain allegations from former members of the Provisional IRA that Adams organised the kidnap and killing of the west Belfast housewife in December 1972.

“The investigation into the abduction and death of Jean Mc Conville by the PSNI and its predecessor the RUC was, simply, a non-investigation – at least until the matter became grist for political opponents of Gerry Adams,” says the ACLUM.

The civil liberties group intervened to support journalist Ed Maloney and former IRA prisoner Anthony McIntyre – who acted as researcher on Boston College’s Belfast Project – in appealing against the refusal of a lower court to allow their own legal team to argue their case rather than depend on lawyers for the college.

The project involved up to 30 interviews with former paramilitary activists conducted on the basis of assurances from Maloney and McIntyre that none of the recorded material would be made public during the lifetimes of the interviewees.

The brief submitted by the ACLUM declares that the ability of journalists or academics to protect sources makes it essential “that those who assume confidentiality obligations in exchange for obtaining such information have the right to be heard in opposition to attempts by public or private parties to compel disclosure”.

The brief also argues that the lives of participants in the project would be at risk if material is provided to the police which could form the basis of charges against members or former members of the IRA.

The killing of Jean McConville is at the heart of the case. A widow and mother of 10, aged 37, she was abducted by members of the IRA from her Divis flat and killed as an informer.

Her body wasn’t found until 2003, when a member of the public stumbled on the remains while walking on Shelling Hill beach in Co Louth.

The investigation of the killing by the RUC at the time of the abduction and by the PSNI following the discovery of the body was the subject of a damning report by the Police Ombudsman in 2006.

The ACLUM tells the Massachusetts court that this investigation had revealed that: “The Northern Ireland police did not even investigate the death … for more than two decades. Now, in the name of solving a 40-year-old murder, the [US] Government risks subjecting multiple participants in the Belfast Project to the ultimate retaliation …

“Although the police received multiple reports about the abduction, the Police Ombudsman’s investigators were ‘unable to find any trace of any investigation into Mrs McConville’s abduction during the 1970s and 1980s’. No investigation at all took place until 1995 … The police who worked the McConville’s neighbourhood in 1972 were questioned and ‘none could recall any investigation being carried out’.

“One detective conceded ‘that because of the situation … at the time, enquiries in the area were restricted to the most serious cases’, of which the McConville abduction apparently was not one.

“Even three decades later, police co-operation with the Ombudsman’s investigation was less than complete.”

The ACLUM’s key suggestion is that the action to obtain the tapes was launched only after it was suggested that they might contain information linking Adams to the kidnap and killing.

In balancing Maloney’s and McIntyre’s right to keep the information confidential against the public interest in disclosure, the ACLUM argues, the court should examine “whether the information was sought as part of a legitimate murder investigation, or an attempt to use the investigation to embarrass Adams”.

If the Massachusetts court decides to conduct an investigation along these lines, the case may be taken into territory touching on the peace process.

Group backs secrecy on NI tapes
GERRY MORIARTYIrish Times
Thursday, March 1, 2012

THE AMERICAN Civil Liberties Union of Massachusetts has warned that disclosing tapes from an oral history project on the Troubles would render Ed Moloney and Anthony McIntyre liable to execution.

The civil liberties group, in a submission to the US Court of Appeals, also warned that handing over tapes of interviews with republicans, including former IRA prisoner Dolours Price, to British authorities would also leave these interviewees facing possible execution by the IRA. “A culture of death to informants pervades both sides of the Troubles, and it has, unfortunately, survived the Good Friday agreement,” it stated.

The intervention through an “amicus brief” by the group challenging a US district court ruling that interviews be handed over was welcomed by writer, journalist and former director of the so-called Belfast Project, Ed Moloney, and by former IRA prisoner and academic Anthony McIntyre, who carried out the republican interviews.

The project involved taped interviews with former republican and loyalist paramilitaries being lodged with Boston College on the agreement that they would be revealed only on the death of the interviewees. However, the British authorities are now seeking disclosure of some of the republican tapes, including the interviews given by Dolours Price. Boston College is challenging some of the demands but not the requirement to hand over the Price tapes.

The group said the US government had “cavalierly” remarked in its defence of releasing tapes that “the Price interview by Boston College has been widely known for more than a year and nothing has happened” to her or Mr Moloney, Mr McIntyre or others.

“If disclosure is made, there is a grave risk that retaliation will follow,” the group said. It also said that, notwithstanding the peace process, IRA rules forbade the disclosure of secrets by its members.

While the Provisional IRA has ended its campaign of violence, the civil liberties group noted that the Real IRA, in a statement, said that it “unlike the Provos . . . [wasn’t] prepared to tolerate traitors”. It is reported that the PSNI is seeking the Dolours Price tapes to determine if it can shed any light on who murdered Jean McConville in 1972.

SITE MAP

The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

Follow BCSN

Subscribe to BCSN

Enter your email address to follow this blog and receive notifications of new posts by email.